Establishes certain offenses relating to structuring, money laundering and defrauding the government; eliminates the one-year time requirement for aggregation payments; relates to the disclosure of tax returns to grand juries; relates to geographical jurisdiction of certain offenses.
STATE OF NEW YORK
________________________________________________________________________
5578--A
2015-2016 Regular Sessions
IN SENATE
May 14, 2015
___________
Introduced by Sen. AVELLA -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes -- recommitted to
the Committee on Codes in accordance with Senate Rule 6, sec. 8 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the penal law, in relation to establishing certain
offenses relating to structuring, money laundering and defrauding the
government; to amend the tax law, in relation to eliminating the one-
year time requirement for aggregation payments and in relation to
disclosure of certain tax returns to a grand jury; and to amend the
criminal procedure law, in relation to geographical jurisdiction of
offenses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 470.00 of the penal law is amended by adding three
2 new subdivisions 11, 12 and 13 to read as follows:
3 11. "Structures" for purposes of sections 470.30 and 470.31 of this
4 article, a person structures a transaction when, with the intent to
5 evade any reporting requirement under the New York state banking law or
6 31 U.S.C. §§ 5311 through 5326, or any regulation prescribed thereunder,
7 he or she conducts or attempts to conduct one or more related trans-
8 actions in currency, in any amount, with one or more financial insti-
9 tutions, on one or more days. Structuring includes, but is not limited
10 to, the breaking down of a single sum of currency exceeding ten thousand
11 dollars into smaller sums, including sums at or below ten thousand
12 dollars, or the conduct of a transaction, or series of currency trans-
13 actions, including transactions at or below ten thousand dollars. The
14 transaction or transactions need not exceed the ten thousand dollar
15 reporting threshold at any single financial institution or on any single
16 day in order to constitute structuring.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11108-02-6
S. 5578--A 2
1 12. "Monetary transaction" means a deposit, withdrawal, transfer
2 between accounts, exchange of currency, loan, extension of credit,
3 purchase or sale of any stock, bond, certificate of deposit, or other
4 monetary instrument, use of a safe deposit box, or any other payment,
5 transfer, or delivery by, through, or to a financial institution, by
6 whatever means effected, except that "monetary transaction" shall not
7 include any transaction involving bona fide payments to attorneys for
8 legal services.
9 13. "Property derived from specified criminal conduct" means any prop-
10 erty constituting, or derived from, proceeds of specified criminal
11 conduct, and need not exclusively constitute or be derived from proceeds
12 of specified criminal conduct.
13 § 2. The penal law is amended by adding four new sections 470.30,
14 470.31, 470.32 and 470.33 to read as follows:
15 § 470.30 Structuring in the second degree.
16 A person is guilty of structuring in the second degree when, with the
17 intent to evade any reporting requirement under the New York state bank-
18 ing law or 31 U.S.C. §§ 5311 through 5326, or any regulation prescribed
19 thereunder, he or she structures one or more transactions.
20 Structuring in the second degree is a class E felony.
21 § 470.31 Structuring in the first degree.
22 A person is guilty of structuring in the first degree when he or she
23 commits the crime of structuring in the second degree and: (1) the
24 conduct is committed with an intent to commit another crime or to aid or
25 conceal the commission of another crime; or (2) the aggregate value of
26 the currency reported or the currency that should have been reported
27 exceeds one hundred thousand dollars in any twelve-month period.
28 Structuring in the first degree is a class D felony.
29 § 470.32 Criminal monetary transaction in the second degree.
30 A person is guilty of engaging in a criminal monetary transaction in
31 the second degree when he or she knowingly engages or attempts to engage
32 in a monetary transaction in property derived from criminal conduct with
33 a value greater than twenty thousand dollars and the property is derived
34 from specified criminal conduct.
35 Criminal monetary transaction in the second degree is a class E felo-
36 ny.
37 § 470.33 Criminal monetary transaction in the first degree.
38 A person is guilty of engaging in a criminal monetary transaction in
39 the first degree when he or she knowingly engages or attempts to engage
40 in a monetary transaction in property derived from criminal conduct with
41 a value greater than sixty thousand dollars and the property is derived
42 from specified criminal conduct.
43 Criminal monetary transaction in the first degree is a class D felony.
44 § 3. Subdivision 3 of section 470.03 of the penal law, as amended by
45 section 17 of part A of chapter 1 of the laws of 2004, is amended to
46 read as follows:
47 3. For purposes of sections 470.32 and 470.33 of this article, mone-
48 tary transactions may be considered together and the value of the prop-
49 erty derived from specified criminal conduct may be aggregated, provided
50 that the monetary transactions are all part of a single "criminal trans-
51 action" as defined in subdivision two of section 40.10 of the criminal
52 procedure law.
53 4. Nothing in sections 470.05, 470.21, 470.22, 470.23 and 470.24;
54 paragraph (b) of subdivision one, paragraph (b) of subdivision two and
55 paragraph (b) of subdivision three of section 470.10; paragraph (b) of
56 subdivision one, paragraph (b) of subdivision two and paragraph (b) of
S. 5578--A 3
1 subdivision three of section 470.15; [or] paragraph (b) of subdivision
2 one and paragraph (b) of subdivision two of section 470.20; or section
3 470.32 or section 470.33 of this article shall make it unlawful to
4 return funds held in escrow:
5 (a) as a portion of a purchase price for real property pursuant to a
6 contract of sale; or
7 (b) to satisfy the tax or other lawful obligations arising out of an
8 administrative or judicial proceeding concerning the person who provided
9 the escrow funds.
10 § 4. Section 470.25 of the penal law, as amended by chapter 489 of the
11 laws of 2000, is amended to read as follows:
12 § 470.25 Money laundering and criminal monetary transactions; fines.
13 1. Any person convicted of a violation of section 470.05, 470.10,
14 470.15, or 470.20 of this article may be sentenced to pay a fine not in
15 excess of two times the value of the monetary instruments which are the
16 proceeds of specified criminal activity. When a fine is imposed pursuant
17 to this subdivision, the court shall make a finding as to the value of
18 such monetary instrument or instruments. If the record does not contain
19 sufficient evidence to support such a finding the court may conduct a
20 hearing upon the issue. In imposing a fine, the court shall consider the
21 seriousness of the conduct, whether the amount of the fine is dispropor-
22 tionate to the conduct in which he engaged, its impact on victims, as
23 well as the economic circumstances of the convicted person, including
24 the effect of the imposition of such a fine upon his immediate family.
25 2. Any person convicted of a violation of section 470.32 or 470.33 of
26 this article may be sentenced to pay a fine not in excess of two times
27 the value of the monetary transaction which is the proceeds of specified
28 criminal conduct. When a fine is imposed pursuant to this subdivision,
29 the court shall make a finding as to the value of such monetary trans-
30 action. If the record does not contain sufficient evidence to support
31 such a finding the court may conduct a hearing upon the issue. In impos-
32 ing a fine, the court shall consider the seriousness of the conduct,
33 whether the amount of the fine is disproportionate to the conduct in
34 which he engaged, its impact on victims, as well as the economic circum-
35 stances of the convicted person, including the effect of the imposition
36 of such a fine upon his immediate family.
37 3. The imposition of a fine pursuant to subdivision one of this
38 section or paragraph b of subdivision one of section 80.00 of this chap-
39 ter, shall preclude the imposition of any other order or judgment of
40 forfeiture or fine based upon the same criminal conduct.
41 § 5. Paragraph (a) of subdivision 1 of section 460.10 of the penal
42 law, as amended by chapter 368 of the laws of 2015, is amended to read
43 as follows:
44 (a) Any of the felonies set forth in this chapter: sections 120.05,
45 120.10 and 120.11 relating to assault; sections 121.12 and 121.13 relat-
46 ing to strangulation; sections 125.10 to 125.27 relating to homicide;
47 sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and
48 135.25 relating to kidnapping; sections 135.35 and 135.37 relating to
49 labor trafficking; section 135.65 relating to coercion; sections 140.20,
50 140.25 and 140.30 relating to burglary; sections 145.05, 145.10 and
51 145.12 relating to criminal mischief; article one hundred fifty relating
52 to arson; sections 155.30, 155.35, 155.40 and 155.42 relating to grand
53 larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to health
54 care fraud; article one hundred sixty relating to robbery; sections
55 165.45, 165.50, 165.52 and 165.54 relating to criminal possession of
56 stolen property; sections 165.72 and 165.73 relating to trademark coun-
S. 5578--A 4
1 terfeiting; sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and
2 170.70 relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and
3 210.40 relating to false statements; sections 176.15, 176.20, 176.25 and
4 176.30 relating to insurance fraud; sections 178.20 and 178.25 relating
5 to criminal diversion of prescription medications and prescriptions;
6 sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03,
7 200.04, 200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 200.56,
8 215.00, 215.05 and 215.19 relating to bribery; sections 187.10, 187.15,
9 187.20 and 187.25 relating to residential mortgage fraud, sections
10 190.40 and 190.42 relating to criminal usury; section 190.65 relating to
11 schemes to defraud; any felony defined in article four hundred ninety-
12 six; sections 205.60 and 205.65 relating to hindering prosecution;
13 sections 210.10, 210.15, and 215.51 relating to perjury and contempt;
14 section 215.40 relating to tampering with physical evidence; sections
15 220.06, 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39, 220.41,
16 220.43, 220.46, 220.55, 220.60, 220.65 and 220.77 relating to controlled
17 substances; sections 225.10 and 225.20 relating to gambling; sections
18 230.25, 230.30, and 230.32 relating to promoting prostitution; section
19 230.34 relating to sex trafficking; sections 235.06, 235.07, 235.21 and
20 235.22 relating to obscenity; sections 263.10 and 263.15 relating to
21 promoting a sexual performance by a child; sections 265.02, 265.03,
22 265.04, 265.11, 265.12, 265.13 and the provisions of section 265.10
23 which constitute a felony relating to firearms and other dangerous weap-
24 ons; sections 265.14 and 265.16 relating to criminal sale of a firearm;
25 section 275.10, 275.20, 275.30, or 275.40 relating to unauthorized
26 recordings; [and] sections 470.05, 470.10, 470.15 and 470.20 relating to
27 money laundering; sections 470.30 and 470.31 relating to structuring;
28 and sections 470.32 and 470.33 relating to criminal money transactions;
29 or
30 § 6. Section 195.20 of the penal law, as amended by chapter 1 of the
31 laws of 2010, is amended to read as follows:
32 § 195.20 Defrauding the government in the fourth degree.
33 A person is guilty of defrauding the government in the fourth degree
34 when[, being a public servant or party officer,] he or she:
35 (a) engages in a scheme constituting a systematic ongoing course of
36 conduct with intent to:
37 (i) defraud the state or a political subdivision of the state or a
38 governmental instrumentality within the state or to obtain property,
39 services or other resources from the state or a political subdivision of
40 the state or a governmental instrumentality within the state by false or
41 fraudulent pretenses, representations or promises; or
42 (ii) defraud the state or a political subdivision of the state or a
43 governmental instrumentality within the state by making use of property,
44 services or resources of the state, political subdivision of the state
45 or a governmental instrumentality within the state for private business
46 purposes or other compensated non-governmental purposes; [and] or
47 (iii) defraud the state or a political subdivision of the state or a
48 public authority, public benefit corporation, or municipal corporation
49 of the state, or any instrumentality thereof, of one or more forms of
50 revenue, and so evades payment of any tax, insurance premium, contrib-
51 ution, or fee, or any portion thereof, owed to the state or a political
52 subdivision, public authority, public benefit corporation or municipal
53 corporation of the state or any instrumentality thereof, and
54 (b) (i) with respect to an offense charged under paragraph (i) or (ii)
55 of subdivision (a) of this section, so obtains property, services or
S. 5578--A 5
1 other resources with a value in excess of one thousand dollars from such
2 state, political subdivision or governmental instrumentality, or
3 (ii) with respect to an offense charged under paragraph (iii) of
4 subdivision (a) of this section, the aggregate unpaid tax, premium,
5 contribution or fee owed exceeds one thousand dollars.
6 Defrauding the government in the fourth degree is a class E felony.
7 § 7. The penal law is amended by adding three new sections 195.22,
8 195.25 and 195.27 to read as follows:
9 § 195.22 Defrauding the government in the third degree.
10 A person is guilty of defrauding the government in the third degree
11 when he or she:
12 (a) engages in a scheme constituting a systematic ongoing course of
13 conduct with intent to:
14 (i) defraud the state or a political subdivision of the state or a
15 governmental instrumentality within the state or to obtain property,
16 services or other resources from the state or a political subdivision of
17 the state or a governmental instrumentality within the state by false or
18 fraudulent pretenses, representations or promises; or
19 (ii) defraud the state or a political subdivision of the state or a
20 governmental instrumentality within the state by making use of property,
21 services or resources of the state, political subdivision of the state
22 or a governmental instrumentality within the state for private business
23 purposes or other compensated non-governmental purposes; or
24 (iii) defraud the state or a political subdivision of the state or a
25 public authority, public benefit corporation, or municipal corporation
26 of the state, or any instrumentality thereof, of one or more forms of
27 revenue, and so evades payment of any tax, insurance premium, contrib-
28 ution, or fee, or any portion thereof, owed to the state or a political
29 subdivision, public authority, public benefit corporation or municipal
30 corporation of the state or any instrumentality thereof, and
31 (b) (i) with respect to an offense charged under paragraph (i) or (ii)
32 of subdivision (a) of this section, so obtains property, services or
33 other resources with a value in excess of ten thousand dollars from such
34 state, political subdivision or governmental instrumentality, or (ii)
35 with respect to an offense charged under paragraph (iii) of subdivision
36 (a) of this section, the aggregate unpaid tax, premium, contribution, or
37 fee owed exceeds ten thousand dollars.
38 Defrauding the government in the third degree is a class D felony.
39 § 195.25 Defrauding the government in the second degree.
40 A person is guilty of defrauding the government in the second degree
41 when he or she:
42 (a) engages in a scheme constituting a systematic ongoing course of
43 conduct with intent to:
44 (i) defraud the state or a political subdivision of the state or
45 governmental instrumentality within the state or to obtain property,
46 services or other resources from the state or a political subdivision of
47 the state or a governmental instrumentality within the state by false or
48 fraudulent pretenses, representations or promises; or
49 (ii) defraud the state or a political subdivision of the state or a
50 governmental instrumentality within the state by making use of property,
51 services or resources of the state, political subdivision of the state
52 or a governmental instrumentality within the state for private business
53 purposes or other compensated non-governmental purposes; or
54 (iii) defraud the state or a political subdivision of the state or a
55 public authority, public benefit corporation, or municipal corporation
56 of the state, or any instrumentality thereof, of one or more forms of
S. 5578--A 6
1 revenue, and so evades payment of any tax, insurance premium, contrib-
2 ution, or fee, or any portion thereof, owned to the state or a political
3 subdivision, public authority, public benefit corporation or municipal
4 corporation of the state or any instrumentality thereof, and
5 (b)(i) with respect to an offense charged under paragraph (i) or (ii)
6 of subdivision (a) of this section, so obtains property, services or
7 other resources with a value in excess of twenty-five thousand dollars
8 from such state, political subdivision or governmental instrumentality,
9 or (ii) with respect to an offense charged under paragraph (iii) of
10 subdivision (a) of this section, the aggregate unpaid tax, premium,
11 contribution, or fee owed exceeds twenty-five thousand dollars.
12 Defrauding the government in the second degree is a class C felony.
13 § 195.27 Defrauding the government in the first degree.
14 A person is guilty of defrauding the government in the first degree
15 when he or she:
16 (a) engages in a scheme constituting a systematic ongoing course of
17 conduct with intent to:
18 (i) defraud the state or a political subdivision of the state or a
19 governmental instrumentality within the state or to obtain property,
20 services or other resources from the state or a political subdivision of
21 the state or governmental instrumentality within the state by false or
22 fraudulent pretenses, representations or promises; or
23 (ii) defraud the state or a political subdivision of the state or a
24 governmental instrumentality within the state by making use of property,
25 services or resources of the state, political subdivision of the state
26 or a governmental instrumentality within the state for private business
27 purposes or other compensated non-governmental purposes; or
28 (iii) defraud the state or a political subdivision of the state or a
29 public authority, public benefit corporation, or municipal corporation
30 of the state, or any instrumentality thereof, of one or more forms of
31 revenue, and so evades payment of any tax, insurance premium, contrib-
32 ution or fee, or any portion thereof, owed to the state or a political
33 subdivision, public authority, public benefit corporation or municipal
34 corporation of the state or any instrumentality thereof, and
35 (b) (i) with respect to an offense charged under paragraph (i) or (ii)
36 of subdivision (a) of this section, so obtains property, services or
37 other resources with a value in excess of two hundred fifty thousand
38 dollars from such state, political subdivision or governmental instru-
39 mentality, or (ii) with respect to an offense charged under paragraph
40 (iii) of subdivision (a) of this section, the aggregate unpaid tax,
41 premium, contribution or fee owed exceeds two hundred fifty thousand
42 dollars.
43 Defrauding the government in the first degree is a class B felony.
44 § 8. Section 1807 of the tax law, as amended by section 5 of subpart A
45 of part S of chapter 57 of the laws of 2010, is amended to read as
46 follows:
47 § 1807. Aggregation. For purposes of this article, the payments due
48 and not paid under a single article of this chapter pursuant to a common
49 scheme or plan or due and not paid, [within one year,] may be charged in
50 a single count, and the amount of underpaid tax liability incurred,
51 within one year, may be aggregated in a single count.
52 § 9. Subsection (e) of section 697 of the tax law is amended by adding
53 a new paragraph (3-b) to read as follows:
54 (3-b) Notwithstanding the provisions of paragraph one of this
55 subsection, or any other law to the contrary, an officer or employee of
56 the department so designated by the commissioner may disclose tax
S. 5578--A 7
1 returns or tax return information in response to a subpoena duces tecum
2 issued by a grand jury pursuant to the criminal procedure law duly
3 served upon the department and an order of the court that empanelled
4 such grand jury determining, based on a written application submitted
5 under oath or penalty of perjury, that: (i) there is reasonable cause to
6 believe, based upon information believed to be reliable, that a specific
7 criminal act has been committed; (ii) there is reasonable cause to
8 believe that the return or return of information is or may be relevant
9 to a matter relating to the commission of such act; and (iii) the return
10 or return of information is sought exclusively for use in a criminal
11 investigation or proceeding concerning such act, and the information
12 sought to be disclosed cannot reasonably be obtained, under the circum-
13 stances, from another source.
14 § 10. Paragraph (c) of subdivision 2 of section 20.40 of the criminal
15 procedure law is amended to read as follows:
16 (c) Such conduct had, or was likely to have, a particular effect upon
17 such county or a political subdivision or part thereof, [and was
18 performed with intent that it would, or with knowledge that it was like-
19 ly to, have such particular effect therein] or on a city of which such
20 county is a part, whether or not such conduct also had effects on other
21 counties or on the state as a whole; provided that, if such conduct had
22 or was likely to have such particular effect upon the state as a whole,
23 then there shall be proper jurisdiction in the county of Albany in addi-
24 tion to any counties particularly affected; or
25 § 11. This act shall take effect on the first of November next
26 succeeding the date on which it shall have become a law.
